Barnes v Commissioner of Police

[2014] QDC 184

DISTRICT COURT OF QUEENSLAND

CITATION:

Barnes v Commissioner of Police [2014] QDC 184

PARTIES:

MICHAEL PATRICK BARNES
(appellant)

v

COMMISSIONER OF POLICE
(respondent)

FILE NO/S:

19/2014

DIVISION:

Appeal

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

29 August 2014

DELIVERED AT:

Beenleigh

HEARING DATE:

29 July 2014

JUDGE:

Dearden DCJ

ORDER:

1.   Application by appellant to adduce fresh evidence is granted (in part).

2.   Appeal granted.

3.   Fine of $5,000 imposed in the Beenleigh Magistrates Court in respect of offences of knowingly carrying on the business of providing unlawful prostitution, and obstruct police, with convictions recorded, is set aside.

4.   Substitute a fine of $3,000 and order that no convictions be recorded in respect of the offences of knowingly carrying on the business of providing unlawful prostitution and obstruct police.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL - MISCARRAIGE OF JUSTICE – OTHER IRREGULARITIES – where the appellant sought to adduce new evidence at the appeal – where the new evidence was not fresh evidence – where there were irregularities in counsel’s practice at first instance – whether refusing to admit the new evidence would cause a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was fined and had convictions recorded – where there was disparity between sentences imposed on co-offenders - whether the learned magistrate erred in their discretion not to record a conviction   

LEGISLATION:

Criminal Code s.229HB(1)

Justices Act1886 (Qld), s 222.

Penalties and Sentence Act s. 12(2)(c)(i)&(ii)

Police Powers and Responsibilities Act 2000 s.790(1)

CASES:

R v Johnson [2014] QCA 79

R v O’Shea [2011] QCA 18

R v Spina [2012] QCA 179

Tierney v Commissioner of Police [2011] QCA 327

COUNSEL:

The appellant appeared unrepresented

E Kelso for the respondent

SOLICITORS:

The appellant appeared unrepresented

Office of Director of Public Prosecutions for the respondent

Introduction

1. The appellant, Michael Patrick Barnes, appeals from the sentence imposed by the learned magistrate at Beenleigh on 10 March 2014 in respect of charges of knowingly carrying on the business of providing unlawful prostitution, and obstruct police, for which the appellant was fined $5,000 (in total), with convictions recorded for each of the offences.

Grounds of appeal

1. The appellant’s grounds of appeal as articulated in the Notice of Appeal filed 9 April 2014 are somewhat abstruse, but in essence assert that the sentence imposed was manifestly excessive in comparison to the sentences imposed in respect of two co-offenders, but in particular, that the sentence was manifestly excessive because convictions were recorded in respect of each of the two offences.

The law

1. As indicated by Margaret Wilson AJA in Tierney v Commissioner of Police [2011] QCA 327:

“An appeal from a Magistrates Court to the District Court pursuant to s 222 of the Justices Act1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.” [citations deleted][1]

[1]Tierney v Commissioner of Police [2011] QCA 327 para [26].

Sentence proceeding

1. The appellant and two co-offenders, Hong Qiao (the appellant’s wife) and Patrick Patuullo, appeared before the learned magistrate at Beenleigh on 10 March 2014.  All three defendants were represented by the same solicitor and counsel, despite clear and obvious conflicts which became apparent during the course of the sentencing submissions dialogue between the learned magistrate and counsel.  Despite the learned magistrate providing repeated opportunities for counsel to seek an adjournment (so that each of the defendants could be separately represented), counsel continued with pleas in mitigation for each of the three defendants.  Although counsel maintained a submission that there was no conflict[2], it became painfully clear during the course of submissions on sentence for each of the three defendants that there were irreconcilable conflicts between the interests of each of counsel’s three clients.  Given that, as the learned magistrate correctly pointed out during submissions, there was more than a “real possibility” of conflict between the interests of each of the three defendants, it appears (prima facie) that counsel was in breach of Bar Association of Queensland Barristers Conduct Rules r.113.  Although ultimately not requiring any determination by this court on appeal, the apparent conflict is relevant to the consideration as to whether a miscarriage of justice may have occurred in this case.

   [2]Transcript 1-21.

1. The appellant was charged with knowingly carrying on the business of providing unlawful prostitution (Criminal Code s.229HB(1)) and obstructing police (Police Powers and Responsibilities Act 2000 s.790(1)). Ms Qiao was also charged with knowingly carrying on the business of providing unlawful prostitution. Mr Patuullo was charged with knowingly participating in the provision of prostitution.

1. Ms Qiao was at the relevant time (15 November 2013) the manager of “Exquisite Massage Underwood”, which was not a registered legal brothel.  After receiving information, police arranged for a staff member to attend Exquisite Massage where, at the conclusion of the massage, the masseuse offered sexual services (“a hand job”) for payment.  On 15 November 2013, police executed a search warrant at the Exquisite Massage address where Ms Qiao identified herself as the manager and was detained.  Items were seized including an Apple iPhone which revealed text messages between Ms Qiao, the appellant and Mr Patuullo.

1. Police subsequently executed a search warrant on 16 January 2014 at the residential address of the appellant.  During the execution of that search warrant, the appellant obstructed police from entering the dwelling, and an altercation occurred.

1. Text messages between the appellant and Ms Qiao clearly indicated that the appellant was aware that Ms Qiao was engaging in prostitution, as were other staff.  The messages clearly indicated that the appellant was unhappy about this. 

1. Text messages also indicated that Mr Patuullo was making enquiries with Ms Qiao about the provision of sexual services (in effect, acting as a broker). 

1. The appellant was a registered owner (with the Australian Securities and Investment Commissions (ASIC)) of Exquisite Massage, and Ms Qiao’s telephone belonged to Mr Barnes, which supported the prosecution submission that the appellant had an interest in the business.

1. The appellant was born on 18 December 1952 and was 60 years of age at the time of the offences.  The appellant had no criminal history.

1. It was submitted on behalf of the appellant that the therapeutic massage business was registered with ASIC in the appellant’s name rather than Ms Qiao’s name, because she did not have a permanent resident visa at the time.  Since being charged, the business had been sold.  The appellant had worked for 33 years under contract to an insurance company in an upper management role, and it was submitted that a conviction recorded would affect his “ASIC-financial (sic) licence”.[3] 

   [3]Transcript 1-15.

1. During the course of a robust exchange, the appellant’s counsel accepted the learned magistrate’s proposition that the appellant was “plainly, knowingly aware of the operation of prostitution” in Ms Qiao’s business as at 7 September 2013.[4] 

   [4]Transcript 1-8. 

1. It was also submitted that the plea was an early guilty plea, and that the obstruct police offence occurring after the appellant had requested attending police several times, unsuccessfully, to show him the warrant. 

1. The learned magistrate imposed a fine of $2,000 with no conviction recorded in respect of Ms Qiao.  The learned magistrate imposed a fine of $1,000 with no conviction recorded in respect of Mr Patuullo.

1. The learned magistrate imposed a global fine of $5,000 in respect of both offences for the appellant, with convictions recorded.  In exercising his discretion to record convictions, the learned magistrate noted that:

“The question of whether [the appellant] would suffer as a result of the regulatory bodies coming to know of this offence is mere speculation.  … There has been no material put before the court as to how ASIC might react to this.  There is no material put before the court to show how that organisation has reacted in similar circumstances; it’s all speculation.  Having regard to your role in this [the prostitution offence], the court was not at all persuaded that a conviction shouldn’t be recorded.”[5]

[5]Decision pp 3-4.

New or fresh evidence

1. The appellant sought to place further evidence before this court on appeal.  That material was marked Exhibit 2 and tendered on the appeal, but the court reserved its’ decision as to whether the evidence should be admitted on the appeal.

1. The evidence consisted of two character references, each obtained subsequent to the sentence date; a document dated 12 September 2013 from the Australian Securities and Investments Commission (“ASIC”) confirming the receipt of a request by the appellant to cancel the registration of the business name “Exquisite Massage”, noting that it would take effect in 28 days (after 12 September 2013);  a subsequent letter dated 21 September 2013 from ASIC confirmed that the business name had been registered to a third party effective 21 September 2013; from the insurance organisation through which the appellant had been employed a “prospective representative questionnaire” with a section that included two questions, namely, “Do you have any adult Commonwealth, State or Territory convictions?” and “Are you currently awaiting trial for a criminal offence, are you currently under police investigation or are you under investigation for involved (or have been involved) in any potentially criminal activities such as fraud, theft or assault, in Australia or overseas?; and a document (undated) under the hand of the regional manager of the insurance entity for whom the appellant had worked for some 30 years which noted that:

“If [the appellant] has a conviction registered against him this will be detrimental to his position as he is in the financial sector and we have a no criminal conviction policy.  [The appellant] was honest in explaining his situation to me and is currently suspended until the outcome of his court appeal.

…

Please reconsider this criminal conviction, 30 years in a management position and his livelihood he will lose if convicted.”[6]

[6]Appeal Exhibit 2.

The law

1. The Court of Appeal in R v Spina [2012] QCA 179 succinctly addressed the distinction between “fresh evidence” and “new evidence”. As McMurdo P noted:

“[32]  … Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v R (1974) 131 CLR 510, 516-517; Lawless v R (1979) 142 CLR 659, 674-676 and R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, [2], [10]-[19]. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered.

…

[33]  In determining whether to allow an appeal against conviction based on fresh evidence, the test is whether it is established that there is a significant possibility (or that it is likely) that, in light of all the admissible evidence, both the fresh evidence and the evidence at trial, a jury acting reasonably would have acquitted. See Gallagher v R (1986) 160 CLR 392, 397, 407 and Mickelberg v R (1989) 167 CLR 259, 273, 292, 301-302.

[34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v R (2005) 224 CLR 125, 131-132; R v Young (No 2) [1969] Qd R 566; R v Condren; ex parte Attorney-General [1991] 1 Qd R 574, 579; R v Main (1999) 105 A Crim R 412, 416-417; R v Daley; ex parte A-G (Qld) [2005] QCA 162; and R v Katsidis [2005] QCA 229, [3], [19]. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.”

1. Where the issue is an appeal against sentence, rather than appeal against conviction, the Court of Appeal has indicated (per McMurdo P) that:

“This Court has a discretion to receive evidence of this kind [new evidence that is not fresh evidence] in R v Maniadis [1997] 1 Qd R 593; [196] QCA 242, Davies JA and Helman J, with Fitzgerald P agreeing, noted that there was power to admit evidence in an appeal against sentence where this was in the interests of justice. The power was at least as wide as when admitting evidence in an appeal against conviction. The discretion will not be commonly exercised, by an appeal Court may admit new evidence even where it is not fresh in the sense discussed in Ratten v R (1974) 131 CLR 510 if the admission of the evidence causes the Court to form the ‘opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed’: see s.668E(3) Criminal Code 1899 (Qld).”[7]

[7]R v O’Shea [2011] QCA 18 p.4.

1. More recently, the Court of Appeal (per McMurdo P) again noted that:

“An appellate court will accept further evidence of the kind sought to be led by the applicant [i.e. new but not fresh evidence] where to refuse to do so would result in an injustice: R v Maniadis [1997] 1 Qd R 593 and R v O'Shea [2011] QCA 18 p.4.”[8]

[8]R v Johnson [2014] QCA 79 per McMurdo P para [42].

Discussion

1. The two personal references could easily have been obtained prior to sentence and, in any event, in the context of these matters, would have carried little weight in respect of the issue as to whether or not a conviction should have been recorded.

1. The documentation from ASIC indicating that a request to cancel the registration of “Exquisite Massage” in the appellant’s name occurred at (or presumably shortly before) 12 September 2013 is of little assistance to the appellant given that the charge alleged that the appellant “knowingly carried on the business of providing unlawful prostitution between 7 and 10 September 2013”.[9]

   [9]Bench charge sheet charge 1/3.

1. Accordingly, neither the personal references nor the ASIC correspondence are fresh evidence nor should that material be admitted as new evidence in respect of this appeal. 

1. The correspondence from the regional manager of the insurance entity for which the appellant had worked for some 30 years (undated but provided subsequent to the Magistrates Court proceedings), together with the insurance entity’s “prospective representative questionnaire” seeking information as to adult convictions, are not “fresh evidence”- clearly with reasonable diligence these documents could have been discovered and made available at the original sentence; but the documents collectively are “new evidence” which, if admitted pursuant to the court’s discretion, would cause this court (on appeal) to form the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed.[10] It is not clear whether counsel’s clear conflict in acting for all three co-offenders explains the lack of documentary support for the defence submissions, but there are clear concerns about the competence of that representation which may extend past the obvious issue of conflict. In my view, there is a potential for a miscarriage of justice if this material (the insurance entity correspondence and questionnaire) is not considered by this court on appeal.     

   [10]Criminal Code s. 668E(3) and R v O’Shea [2011] QCA 18 at p. 4.

1. In that respect I note that the learned magistrate during the course of his sentencing remarks specifically identified the lack of documentary material in respect of the effect of the recording of a conviction, when declining to exercise his discretion not to record a conviction.[11] I consider the documents referred to in paragraph [25] above should be admitted, in the interests of justice, as “new evidence” on this appeal. 

   [11]Decision p.3.

Was the penalty imposed manifestly excessive?

1. It is clear that the submissions made to the learned magistrate indicated that the appellant was knowingly involved in the prostitution services being offered by his wife (and co-offender) Ms Qiao, and that the appellant was the holder of the business name “Exquisite Massage” under which the prostitution services were being offered by his wife at the relevant time.  The appellant was also being sentenced for the additional offence of obstruct police, which occurred during the execution of the search warrant in respect of the prostitution offence. 

1. That factual matrix, however, should be compared with the factual matrices relevant to the sentences imposed in respect of each of the co-offenders.  Mr Patuullo was fined $1,000, with no conviction recorded, for his role as a “broker” (directing inquiries in respect of prostitution services to Ms Qiao), and Ms Qiao was fined $2,000, with no conviction recorded, for her active involvement in the provision of prostitution services. 

1. In those circumstances, even taking into account that the appellant was sentenced for two offences rather than one, the global penalty of $5,000, with a conviction recorded, for a 60 year old male with no criminal convictions and of otherwise good character, is in my view manifestly excessive.

1. Given that I have concluded in the appellant’s favour in respect of the admission of the new evidence, it is now clear that the recording of convictions would have a significant effect on the appellant’s “economic or social well-being” and, in particular, “chances of finding employment”.[12]

   [12]Penalties and Sentences Act s.12(2)(c)(i) & (ii).

1. It follows that the learned magistrate’s sentencing discretion has miscarried and further, that in the light of the new evidence admitted by this court on appeal, that the sentencing discretion should be exercised afresh.

1. Taking into account the appellant’s role in respect of the prostitution offence, and the circumstances of the obstruct police charge, I consider an appropriate penalty which achieves parity with his co-offenders, but recognises globally the seriousness of the offending, is a fine of $3,000.  Given the clear detrimental effect that convictions for these offences would have on the appellant’s capacity to earn a living, I order that no convictions be recorded in respect of each of the two offences.

Conclusion

1.            Application by appellant to adduce fresh evidence is granted (in part).

2.            Appeal granted.

3.Fine of $5,000 imposed in the Beenleigh Magistrates Court in respect of offences of knowingly carrying on the business of providing unlawful prostitution, and obstruct police, with convictions recorded, is set aside.

4.Substitute a fine of $3,000 and order that no convictions be recorded in respect of the offences of knowingly carrying on the business of providing unlawful prostitution and obstruct police.